New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration

Complex Lit Blog

Federal Arbitration Act and Diversity Jurisdiction — Determining the Amount in Controversy

Resolving a matter of first impression in the D.C. Circuit, Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008), adopts the “demand” approach to determining federal jurisdiction over arbitration proceedings brought pursuant to the Federal Arbitration Act: Although the Federal Arbitration Act (FAA) constitutes federal law, "the Supreme C ...
Resolving a matter of first impression in the D.C. Circuit, Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008), adopts the “demand” approach to determining federal jurisdiction over arbitration proceedings brought pursuant to the Federal Arbitration Act: Although the Federal…
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RICO — Lawyer Performing Legal Services Does Not Satisfy Reves Test Even if Named Part of Association-in-Fact Enterprise with Client

The plaintiff trust beneficiary alleged that his sister and her lawyer (who also represented the trust) comprised an association-in-fact RICO enterprise pillaging the trust. The Ninth Circuit held that the lawyer could not be held liable under 18 U.S.C. § 1962(c) because her rendering of legal services did not satisfy the operation-and-management test of Reves ...
The plaintiff trust beneficiary alleged that his sister and her lawyer (who also represented the trust) comprised an association-in-fact RICO enterprise pillaging the trust. The Ninth Circuit held that the lawyer could not be held liable under 18 U.S.C. §…
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Summary Judgment — Declarations from Witnesses Not Disclosed Per Rule 26(a)(1) Excluded Pursuant to Rule 37(c)(1)

From Marin v. Evans, 2008 U.S. Dist. LEXIS 61922 (E.D. Wash. July 23, 2008) (a class action): In response to the Court's invitation to file a sur-reply to Defendants' Motion for Summary Judgment, Plaintiffs filed Declarations from both name-Plaintiffs, as well as Declarations from individuals who were not previously disclosed to Defendan ...
From Marin v. Evans, 2008 U.S. Dist. LEXIS 61922 (E.D. Wash. July 23, 2008) (a class action): In response to the Court’s invitation to file a sur-reply to Defendants’ Motion for Summary Judgment, Plaintiffs filed Declarations from both name-Plaintiffs, as…
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Privilege and Waiver — Drafts of Disclosure Documents — Public Relations Firms

Professor Daniel J. Capra of Fordham, the Reporter to the Advisory Committee on the Federal Rule of Evidence, issued a very useful privilege opinion as Special Master in In re New York Renu with Moisureloc Prod. Liab. Litig., WL 2338552 (D.S.C. May 8, 2008). Drafts of Disclosure Documents. The opinion explores the split in the case law concer ...
Professor Daniel J. Capra of Fordham, the Reporter to the Advisory Committee on the Federal Rule of Evidence, issued a very useful privilege opinion as Special Master in In re New York Renu with Moisureloc Prod. Liab. Litig., WL 2338552…
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Special Litigation Committees — How Much Deference? — Minnesota Supreme Court Adopts New York’s Auerbach Standard Over Delaware’s Less Deferential Zapata Approach

The Minnesota Supreme Court in In re UnitedHealth Group Inc. Shareholder Deriv. Litig.,2008 Minn. LEXIS 419 (Minn. S.Ct. Aug. 14, 2008), answering a certified question from the United States District Court for the District of Minnesota, adopted the highly deferential standard of Auerbach v. Bennett, 47 N.Y.2d 619, 393 N.E.2d 994, 999-1000, 419 N.Y.S.2 ...
The Minnesota Supreme Court in In re UnitedHealth Group Inc. Shareholder Deriv. Litig.,2008 Minn. LEXIS 419 (Minn. S.Ct. Aug. 14, 2008), answering a certified question from the United States District Court for the District of Minnesota, adopted the highly deferential…
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RICO — First Amendment Defense to RICO Liability and Damages Allegations

Plaintiff Michael Savage in Savage v. Council on Am.-Islamic Relations, Inc., 2008 U.S. Dist. LEXIS 60545 (N.D. Cal. July 25, 2008), a talk show host, filed a RICO suit based on the defendant’s (i) having posted on its website a four minute clip from the plaintiff’s broadcast together with extensive criticism of what the plaintiff said, and (ii) sending p ...
Plaintiff Michael Savage in Savage v. Council on Am.-Islamic Relations, Inc., 2008 U.S. Dist. LEXIS 60545 (N.D. Cal. July 25, 2008), a talk show host, filed a RICO suit based on the defendant’s (i) having posted on its website a…
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Expert Testimony Should Not Be Excluded Because the Court Credits One Version of the Facts rather than Another

From Mater of the Complaint of Atl. Marine Prop. Holding Co., 2008 U.S. Dist. LEXIS 61026 (S.D. Ala. Aug. 11, 2008): Expert testimony should not be excluded "on the ground that the court believes one version of the facts and not the other." Allstate Insurance Co. v. Hugh Cole Builder Inc., 137 F.Supp.2d 1283, 1285 (M.D. Ala. 2001) ...
From Mater of the Complaint of Atl. Marine Prop. Holding Co., 2008 U.S. Dist. LEXIS 61026 (S.D. Ala. Aug. 11, 2008): Expert testimony should not be excluded “on the ground that the court believes one version of the facts and…
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Sanctions — $5.4 Million Default Judgment for Discovery Abuse Affirmed

The Sixth Circuit affirmed one of the largest sanctions awards in history — a default judgment in the amount of approximately $5.4 million in favor of Allstate Insurance Company — for rampant discovery abuse in Grange Mut. Cas. Co. v. Mack, 270 F. App’x 372 (6th Cir. 2008). The four-part test applied by the Court in assessing the propriety of a defaul ...
The Sixth Circuit affirmed one of the largest sanctions awards in history — a default judgment in the amount of approximately $5.4 million in favor of Allstate Insurance Company — for rampant discovery abuse in Grange Mut. Cas. Co. v.…
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RICO and Twombly

From CSX Transportation, Inc. v. Meserole Street Recycling, Inc., 2008 U.S. Dist. LEXIS 61376 (E.D. Mich. Aug. 12, 2008): In this case, the Court finds that Plaintiff has failed to "nudge [its RICO continuity] claim[] across the line from conceivable to plausible." As did Twombly, this case involves a federal statute under whi ...
From CSX Transportation, Inc. v. Meserole Street Recycling, Inc., 2008 U.S. Dist. LEXIS 61376 (E.D. Mich. Aug. 12, 2008): In this case, the Court finds that Plaintiff has failed to “nudge [its RICO continuity] claim[] across the line from conceivable…
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Experts — Gatekeeper Role Largely Disappears in Bench Trials

From United States v. Apex Oil Co., 2008 U.S. Dist. LEXIS 59964 (S.D. Ill. July 28, 2008): In the previous orders, the Court noted that other courts have held that the Rule 702 inquiry may vary slightly in the case of a bench trial. As the Seventh Circuit has held: It is not that evidence may be less reliable during a ...
From United States v. Apex Oil Co., 2008 U.S. Dist. LEXIS 59964 (S.D. Ill. July 28, 2008): In the previous orders, the Court noted that other courts have held that the Rule 702 inquiry may vary slightly in the case…
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Recent Posts

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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